Opinion
13-P-760
07-21-2015
COMMONWEALTH v. PAUL BARBIERI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Paul Barbieri, was convicted of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A(b); assault and battery, in violation of G. L. c. 265, § 13A(a); and two counts of receiving stolen property, in violation of G. L. c. 266, § 60. The defendant raises the following three issues: (1) whether prior consistent statements were improperly admitted; (2) whether the self-defense instruction for the charge of assault and battery was insufficient, and (3) whether the judge erroneously denied a motion for a new trial after the Commonwealth failed to provide certain discovery in a timely manner. The first and second issues were not preserved by a timely objection at trial. For the reasons stated herein, we affirm the convictions and the order denying the motion for new trial.
The defendant was acquitted of a fifth charge, armed assault with intent to murder, in violation of G. L. c. 265, § 18(b). He was sentenced to the Massachusetts Correctional Institution at Cedar Junction for not less than five and not more than six years for assault and battery by means of a dangerous weapon, and five years of probation to run thereafter on the other three counts.
Background. A romantic relationship arose between the defendant and the victim's girl friend while the victim was incarcerated for an unrelated offense. Upon release, the victim learned of his girl friend's affair, but the two nevertheless reconciled and began living together anew. On June 8, 2009, after receiving three text messages, from a cellular telephone owned by the girl friend, inviting him to come over, the defendant went to the victim's house. There, he found the victim in the backyard, and the two began to fight. Police were called, and the combatants were separated at gun point. Both were transported to a local hospital, where each identified the other as the aggressor. Shortly thereafter, the victim's girl friend gave a statement to police, indicating the aforementioned text messages were sent by the victim; she later refuted this assertion in a recorded police interview, and twice more in testimony before a grand jury and at trial.
On the fifth day of trial, the recorded interview was provided to the defense counsel in the form of a DVD, but it was never offered in evidence. The defense devoted considerable focus on casting doubt on the identity of the true sender of the text messages, in part by impeaching the girl friend's credibility, suggesting contradictions throughout trial, beginning with opening statements, and further eliciting the inconsistent statements from testimony of the initial interviewing officers. The prosecution responded by presenting the girl friend's grand jury testimony as prior consistent statements, to rebut any inference of dubious candor.
A motion to expand the record on appeal to include the DVD has been allowed.
Discussion. 1. Prior consistent statements. Ordinarily, "a witness's prior consistent statement is inadmissible, even where a prior inconsistent statement of the witness has been admitted." Commonwealth v. Zukoski, 370 Mass. 23, 26 (1976). "[H]owever, a witness's prior consistent statement is admissible where a claim is made that the witness's in-court statement is of recent contrivance or is the product of particular inducements or bias." Id. at 26-27. While the girl friend's credibility was questioned, the defense never claimed her testimony was a result of recent contrivance or bias. Accordingly, the prior consistent statements should not have been admitted. Nonetheless, the girl friend was thoroughly questioned and impeached by the defense, allowing the jury to fairly assess her credibility. There was no substantial risk of a miscarriage of justice as a result of the improper admission of this evidence.
2. Jury instructions. In claiming a deficiency in the self-defense instruction for assault and battery, the defendant relies on Commonwealth v. Baseler, 419 Mass. 500 (1995). There, as in this case, when the judge instructed on self-defense in relation to the charge of assault and battery, he referred to the self-defense instruction given earlier for assault and battery by means of a dangerous weapon. However, in Baseler, unlike in the present case, the judge's instructions were limited to the defendant's right to use deadly force in self-defense and failed to explain that an individual may use nondeadly force in self-defense when he has a reasonable concern over his personal safety. Id. at 502-503. In the present case, the judge's instructions, while inartful, did inform the jury that self-defense was available in connection with the charge of assault and battery as well as the charge of assault and battery by means of a dangerous weapon. In any case, as the Commonwealth argues, insofar as the judge's instructions may have been deficient, there is no substantial risk of a miscarriage of justice because the defendant maintained that the victim attacked him using deadly force while the victim claimed the defendant was the first aggressor.
3. Motion for a new trial. In reviewing an order denying a motion for a new trial, we consider whether the ruling was "an abuse of discretion or other significant error of law." Commonwealth v. Raymond, 450 Mass. 729, 733 (2008). "[A] reviewing court extends special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The prosecution's failure to provide the defense with the DVD in a timely manner pursuant to Mass.R.Crim.P. 14, as appearing in 442 Mass. 1518 (2004), is not in dispute. When the basis for a motion for a new trial "involves late disclosure by the prosecution, without any showing of bad faith on its part . . . a defendant is required to show material prejudice from the [delay in] disclosure before a new trial can be considered." Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997).
Rule 14(a)(1)(A)(vii) reads, in relevant part, "[t]he prosecution shall disclose to the defense, and permit the defense to discover, inspect and copy, . . . the following items and information at or prior to the pretrial conference[:] . . . statements of persons the party intends to call as witnesses."
The judge did not credit the defendant's testimony that his trial counsel did not consult with him about the use of the DVD during the trial. Moreover, trial counsel testified that the decision not to use the DVD was strategic. The defense concedes the content of the recorded interview is both exculpatory and inculpatory, which lends force to trial counsel's testimony. We have reviewed the DVD ourselves and are satisfied that trial counsel had good reasons for not using it, as it may well have bolstered the victim's credibility. "The defendant has not shown how his trial tactics would have or should have changed," had he had earlier access to the DVD. Commonwealth v. Stote, 433 Mass. 19, 23 (2000). Under these circumstances, the judge was warranted in concluding that the defendant failed to demonstrate that he was prejudiced by the late disclosure of this evidence.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Berry, Wolohojian & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 21, 2015.